Social dialogue and conflict resolution
Social dialogue and conflict resolution in the acceding countries
Kranj, 31 March - 2 April 2004
Kokra Hotel (Brdo Estate) Kranj, Slovenia
Speech abstract - Anneliese Büggel
Director, U.S. Federal Mediation & Conciliation Service
Labour conflict resolution in Germany
The way of labour conflict resolution in Germany is different and depends on the parties involved.
I. Individual labour conflicts
Individual labour conflicts take place between employer and worker/employee. The conflict may have its source in a different view of the rights and obligations resulting out of the labour contract and/or the labour laws/collective agreements.
Each of the parties can go to the labour court to resolve the conflict. Each chamber of the labour court is made-up by a professional judge and one non-professional judge from the „workers“-side and another one from the „employers“-side. The Trade Unions and the Employers‘ Associations make proposals for the non-professional judges and the state administration decides on the nomination (usually for 5 years).
The labour court procedure starts with a kind of conciliatory proceeding by the judge. The judge discusses with the parties the facts of the case and tries to bring the parties together by finding a compromise/a solution themselves.
If this trial fails the normal court procedure starts (if necessary with testimony of witnesses). Usually the judge tries during the whole procedure, that the parties find a compromise. If this fails the judgement will be pronounced. In general legal remedy is possible.
Mediation is possible on a voluntary basis, but not very common in individual labour conflicts in Germany. By law arbitration is possible in special cases and under certain circumstances.
II. Collective labour conflicts
In Germany there exists a dual system concerning the representation of workers: Trade Unions negotiate with Employers‘ Associations (or individual employers) collective agreements setting basic terms and conditions on regional or federal branch/industrial level.
Works Councils have the right to negotiate collective workplace agreements on issues, which are not already covered by a collective agreement between the Trade Union and the Employers' Association/Individual Employer.
1. The resolution of a collective labour conflict between the Trade Unions and the Employers' Association
The Constitution (Article 9), the law (Tarifvertragsgesetz = collective bargaining law) and the legislation protect the autonomy of the parties, the freedom of association, the activity of the Trade Unions and the Employer‘s Associations, right to strike and to lock-out. (And as many other countries Germany has also acknowledged the European Social Charta, which includes several rights for Trade Unions and Employers‘ Associations).
Normally a collective agreement is made for a certain period until a new agreement comes into force. During the agreement in force and the negotiation the parties have to keep peace. Other than short token strikes are not allowed. There exist a lot of judgements when a short token strike is justified or not.
If the parties do not reach an agreement, conciliation is possible. There exist two different conciliation procedures: The voluntary and the state conciliation.
In general Trade Unions and the Employers' Associations have signed a (separate) agreement on voluntary conciliation where the whole rules are laid down. The rules laid down in the agreement differ from branch/industry to branch/industry. But usually the conciliation board is made-up by a neutral president and the same number of associate members of each party. The negotiation takes place behind closed doors. The conciliation board makes a proposal, which is only binding if the parties have agreed to accept it before the procedure starts or accept it after it has been made. If they don‘t accept it, there are two possibilities: State conciliation (if the conditions are fulfilled) or industrial action.
State conciliation only takes place if there does not exist a conciliation contract between the parties and one of the parties go to the state conciliation or the conciliation on the basis of the conciliation agreement failed and both parties agree to go to the state conciliation. There are two stages of state conciliation: First a kind of mediation procedure by a state mediator takes place. The state mediator shall advise the parties and help them to find a compromise/solution. The procedure is formless, verbal and takes place behind closed doors. If the mediation fails, both parties must agree to go to the conciliation board. For each party there are the same number of associate members in the conciliation board, elected out of a list. The list is made by the Labour Ministry out of proposals of the parties. The president of the conciliation board will be elected out of a list made by the Labour ministry. The conciliation ends with a written proposal of the conciliation board (or an solution between the parties themselves). The proposal is only binding if both parties have agreed to accept the proposal before the procedure started or they agree on it before the conciliation board. If the conciliation fails: Industrial action is possible. During conciliation procedures the parties generally are obliged to keep peace.
2. The resolution of a collective labour conflict between the works council and the employer
Works Councils in Germany have statutory enforceable rights to information, consultation and joint decision-making, depending on the issue. Additionally they can have voluntary decision-making rights. The basis for the rights is the Betriebsverfassungsgesetz (BetrVG) =Employees‘ Representation Act.
The statutory enforceable rights cover social, personal and economic matters. By the law the parties may conclude workplace agreements on issues, which are not already covered by a collective agreement between the Trade Union and the Employers‘ Association or an Employer. Very important matters for workplace agreements for example are laid down in § 87 BetrVG (called social matters). § 87 I BetrVG includes 13 different social matters, e.g. allocation of working-time, overtime, holidays or control of employees. Other important matters for a workplace agreement is the social plan in the case of collective redundancies (§ 112 BetrVG) or an agreement on workplace qualification (98 BetrVG).
If the parties do not reach an workplace agreement each party has the right to go to the settlement board (Einigungsstelle). It is an enforceable right. The settlement board has to be built new for each conflict. It is not a permanent one. It is made-up by one president and the same number of associate board members for each party. Both parties must agree on the person of the president and the number of the associate members. If one of the parties does not agree, it can go to the labour court, which decides on the person of the president and/or the numbers of associate members. The parties themselves decide on their associate members. Often each side has a lawyer.
The president of the settlement board decides on the procedure. During the whole procedure usually he tries to convince the parties to find a compromise themselves. If he fails, the settlement board will decide with majority and detailed how the conflict has to be solved. The decision has to be written down and signed by the president. The decision is binding and has the power of a collective agreement between the works council and the employer and is valid in general for all workers/employees in the enterprise. The decision is voidable only under extraordinary circumstances.
The voluntary rights concerning a voluntary workplace agreement are laid down in a general clause in § 88 BetrVG. In practise the parties do not use this possibility or very seldom. However if they should use it and they cannot reach an agreement they can apply to a settlement board if both agree to do so. Also both parties have to agree on the person of the president and the number of associate members. If the parties do not find a compromise or solution during the conciliation procedure the settlement board makes a proposal. The proposal is not binding except the parties agreed in advance to accept it or they accept the proposal before the settlement board as binding.
There is no right to strike/lockout if it is a conflict on a workplace agreement.